Gauhati High Court
Kulendra Kumar Das vs The State Of Assam And 2 Ors on 6 February, 2023
Page No.# 1/4
GAHC010017902023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/601/2023
KULENDRA KUMAR DAS
S/O LT. KHARGE DHAR DAS R/O FOREST COLONY WARD NO. 10 P.O. AND
P.S BARPETA ROAD DIST. DHUBRI ASSAM
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM
REVENUE AND DM DEPTT. DISPUR GUWAHATI 6
2:THE INSPECTOR GENERAL OF REGISTARTION ASSAM
RUPNAGAR GUWAHATI 32
3:THE DISTRICT REGISTRAR
BONGAIGAON ASSA
Advocate for the Petitioner : MRS N GOSWAMI
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH
ORDER
Date : 06.02.2023
Heard Mr. B. Kaushik, the learned counsel appearing on behalf of the
Page No.# 2/4
petitioner. Mr. S. Dutta, the learned counsel appears on behalf of the respondent
Nos. 1 and 2 and Ms. M. D. Borah, the learned counsel appears on behalf of the
respondent No. 3.
Issue notice making it returnable on 13th of February, 2023.
As the respondents are duly represented by their respective counsels,
extra copies of the writ petition be served upon them during the course of the
day.
The case of the petitioner herein is that an FIR was filed being
Bongaigaon P.S. Case 742/2021 under Sections 120(B)/420/468/471 IPC
wherein there has been certain allegations made of execution of a forged
registered Sale Deed bearing No. 839/779. Subsequent thereto the petitioner
was arrested on 24/6/2022. On the ground that the petitioner was arrested, the
respondent authorities have exercised powers under Rule 6(2) of the Assam
Services (Discipline and Appeal) Rules 1964 (for short "the 1964 Rules") and
had put the petitioner under suspension pending initiation of departmental
proceedings. It further appears from the records that on 8/7/2022, the
petitioner was granted the bail by the Court of the Sessions Judge, Bongaigaon
in Misc. Criminal Case No. 137/2022. Thereupon the petitioner from time and
again had requested the respondent authorities to revoke the suspension order
and to re-instate him. However, the respondent authorities in complete
derogation to the law laid down by the Supreme Court in the case of Ajay Kr
Choudhury -Vs- Union of India through its Secretary & Anr. reported in
(2015) 7 SCC 291 had continued with the suspension for which the petitioner
is before this court.
The learned counsel appearing on behalf of the petitioner, Mr. B. Kaushik
Page No.# 3/4
has also drawn the attention of this Court to the judgment rendered in the case
of Rakibuddin Ahmed Vs. The State of Assam reported in 2020 (2) GLR
621 and submitted that the principles as laid down by the Supreme Court in the
case of the Ajay Kr Choudhury(supra) would also be applicable in the case of a
deemed suspension done in exercise of the powers under Rule 6(2) of the 1964
Rules. The learned counsel therefore referred to paragraph Nos.15,16 and 17 of
the said judgment which are reproduced herein below:-
"15. We have consciously applied our mind to the query raised by the learned Single
Judge. Though the case of Ajay Kumar Choudhury(Supra) is a case where suspension
order was issued pending drawal of Disciplinary Proceeding and not a case of deemed
suspension, the observation made by the Hon'ble Supreme Court in paragraph-20
whereby, the analogy of Section 162(2) Cr.P.C.,1976 has been brought in, we are
persuaded to hold that the principles laid down in the said case cannot be restricted to
an order of suspension issued only on contemplation of drawal of Disciplinary
Proceeding and not for deemed suspension.
In our view, the issue should be seen from the perspective of the consequence
and effect of suspension which is the same in both the cases. We also feel that no
prejudice, whatsoever, would be caused to the Department by such interpretation
inasmuch as no blanket order of revocation of suspension is passed and it is left to the
Department to make periodic review within a period of 3(three) months and decide as
to whether such suspension is required to be extended or not by assigning reasons.
Whether such reasons are justified and germane can be the subject matter of a
separate challenge.
In view of the aforesaid discussion, we answer the reference by holding that the
principles laid down in the case of Ajay Kumar Choudhury(Supra) would also be
applicable in case of deemed suspension under Section 6(2) of the 1964 Rules.
16. Further, in the instant case, it is seen that the order of suspension is also on
account of pending drawal of Disciplinary Proceeding in which case, periodic review
within 3(three) months is otherwise held to be mandatory.
17. Since we have already answered the reference holding that periodic review in
the case of deemed suspension is mandatory, the requirement of remanding the
matter to the learned Single Judge would be a meaningless exercise and as agreed by
the parties, while answering the reference, as above, we are of the opinion that a case
for interference of the impugned order dated 16.02.2019 is made out.
Accordingly, the order of suspension dated 16.02.2019 issued by the Divisional
Forest Officer, Guwahati Wildlife Division is hereby set aside and quashed. We.
However, hasten to add that the Department would be a liberty to post the petitioner
in any non-sensitive post."
Page No.# 4/4
On the basis of the above, the learned counsel therefore submitted that
the respondent authorities till date have neither initiated any departmental
proceedings nor have reviewed the suspension so effected upon the petitioner
although it is the mandate of law that they are required to do within a period of
3(three) months.
Taking into account the same, the learned counsel for the respondents Mr.
S. Dutta is directed to obtain necessary instructions on the next returnable date
as regards the matter in issue.
Pendency of the instant proceedings shall not be a bar on the part of the
respondents to take appropriate action as deemed necessary in terms with the
judgments of the Supreme Court in Ajay Kumar Choudhury(supra) and
Rakibuddin Ahmed(supra).
Petitioner is given liberty to mention the matter for upgrading on the next
date.
JUDGE
Comparing Assistant
